JUDGMENT : GOUTAM BHADURI, J. 1. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 27/02/2021 passed by the learned 1st Additional Sessions Judge, Kanker, District North Bastar, Kanker, C.G. in Sessions Trial No. 30/2019, whereby the appellant has been convicted for commission of offence under Section 302 of the IPC and sentenced to undergo R.I. for life and to pay fine of Rs.1000/- in default of payment of fine amount to undergo additional R.I. for 3 months. 2. The prosecution case in brief, is that on 17/09/2019 an FIR was lodged by one Uttamram Yadav vide Ex. P/8 that on 17/09/2019 while he was coming after grazing the cattle at that time,the appellant/accused was hurling different abuses to his father Jeevanlal on various counts. At that juncture his mother Jainbai and his wife Panchbati went near the house of the appellant to advise him to stop abusing. On being interrupted by Jainbai, the appellant ran back to his house came back with a spade and assaulted the deceased Jainbai and gave a blow on her neck and back. Due to such blow she fell down to the ground. Subsequently, the deceased was subjected to postmortem wherein the cause of death was shown as excessive hemorrhage due to injury inflicted on the body of the deceased and excessive bleeding. The postmortem suggested that death was homicidal in nature. The police recorded the various statements and the trial Court primarily relied on the statement of eyewitness Panchbai Yadav (PW-2) and convicted the accused as aforesaid. Hence this appeal. 3. Learned counsel for the appellant would submit that the eye witness Panchbai Yadav (PW-2) is the relative of the deceased and she is an interested witness and the documents which are exhibited would show that the incident happened in a spur of moment and there was no intention to kill also it was not a premeditated. Learned counsel would place his reliance in the judgment rendered by the Supreme Court in the matter of Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635 and would submit that in the similar nature of incident the sentence was converted to under Section 304-II IPC, therefore, in the instant case, the similar treatment is required to be meted out by interfering in the impugned judgment of conviction and sentence. 4. Per contra, learned State counsel, on the other hand, opposes the arguments advanced by learned counsel for the appellant and would submit that the statement of the eye witness Panchbai Yadav (PW-2) remains un-rebutted. He would also submit that there is no explanation as to why the appellant ran back to his house and came back armed with a spade and thereafter assaulted the deceased. He would refer to the postmortem report wherein the nature of death is shown homicidal in nature due to excessive blood loss because of the injury caused, therefore, in view of the evidence having been placed by the prosecution, no interference is called for in the impugned judgment of conviction and order of sentence. 5. We have heard learned counsel for the parties and perused the record. 6. Perusal of the record would show that when the trial commenced with the denial of the charges, thereafter, the prosecution examined 15 witnesses and exhibited 32 documents. As per the prosecution, while the accused was abusing the husband of the deceased, the deceased along with her daughter-in-law went to him to advise him not to abuse and in such state, the appellant went back to his house came back with a spade and assaulted her. 7. Statement of Panchbai Yadav (PW-2), who was present along with the deceased at the time of incident, is perused. Perusal of the statement of this witness would show that at about 5.00 pm the appellant was hurling filthy abuses to her father-in-law namely Jeevanram Yadav, having heard the said abuses, they came out and tried to advise the accused. After the accused saw them he ran back to his house, came back with a spade and assaulted Jainbai (the deceased) on her head and neck. Having heard the noises, the husband of Panchbai Yadav (PW-2) also reached to the spot and saw that the deceased fell down on the ground. Subsequently, the accused chased the witness Panchbai Yadav (PW-2) for assaulting her but she ran away. The cross-examination of this witness would show that such statement of physical assault has not been negated in the cross-examination. 8. Subsequently, the accused chased the witness Panchbai Yadav (PW-2) for assaulting her but she ran away. The cross-examination of this witness would show that such statement of physical assault has not been negated in the cross-examination. 8. Further, the statement of Uttamram Yadav (PW-1), who immediately rushed to the spot, stated that while he was going back to his house after grazing the cattle at about 5.00 pm, he saw that the accused was hurling abuses to his father, at that time his mother and wife came out to advise the accused and subsequently he heard the voice of his wife that the accused has assaulted with spade, he rushed to the spot and saw that his mother was lying on the pool of blood. This witness thereafter cried for help and with the help of one Yogesh Sinha (PW-6), they took the injured to the Primary Health Center, where from the deceased was taken to Narharpur Hospital, wherein she was declared dead. The statement of this witness also remained unrebutted in the cross-examination. 9. After the incident the merg intimation was reported vide Ex. P/3 on 17/09/2019 at 19.30 hours i.e. at 7.30 pm. The contents of such merg intimation narrates the verbatim facts which was deposed by Panchbai Yadav (PW-2) & Uttamram Yadav (PW-1). Thereafter on the basis of such report Naksha Panchnama (Ex. P/5) was drawn vide Ex. P/5 and map of the spot was also prepared vide Ex. P/7. Perusal of such crime details form which depicts the map supports and corroborates the statement made by Panchbai (PW-2), Uttamram Yadav (PW-1) and Yogesh Sinha (PW-6) that place of incident was on the road and from the place of incident the house of the accused was at a short distance of 9 meters, therefore, the statement of the witness that the accused rushed back to his house and came back with a spade appears to be logical. 10. The postmortem report (Ex. P/31) in this case which is proved by Dr. Bhupendra Kumar Dhruw (PW-14). On inspection the following injuries were found: “(1) Injury found in the left side of neck (cut injury) 5 cm in length, 2 cm width and 5 cm deep. (2) Injury found on the right side of frontal bone length 4 cm, width 2 cm and deep (bone deep).” 11. Bhupendra Kumar Dhruw (PW-14). On inspection the following injuries were found: “(1) Injury found in the left side of neck (cut injury) 5 cm in length, 2 cm width and 5 cm deep. (2) Injury found on the right side of frontal bone length 4 cm, width 2 cm and deep (bone deep).” 11. According to the opinion of doctor the death was caused due to excessive hemorrhage of blood loss which resulted in the hypovolemic shock i.e. loss of blood and fluid from the body and was homicidal in nature. The injury would show that two injuries were inflicted one is on the neck and another one is on the head and both the injuries were incised. Subsequently, the appellant having been arrested his memorandum was recorded vide Ex. P/10 and on the basis of memorandum the seizure of spade was made from the house of the accused vide Ex. P/11. 12. The seizure witness Sawantram Vishwakarma (PW-4) has supported the said seizure along with witness Vishnu Tandiya (PW-5). The said spade was sent for a query vide Ex. P/24 that as to whether the injuries of the nature which was caused on the body could have been inflicted and Dr. Bhupendra Kumar Dhruw (PW-14) given his opinion in affirmative that by such weapon the nature of injury, which was inflicted on the deceased could have been caused. The said spade was sent for FSL and the FSL report is Ex. P/29. Perusal of it would show that the spade which was marked as Article 'C' was having blood and the full pant and shirt of the accused/appellant which was seized vide Ex. P/11 was having human blood. There is no explanation in the statement given under Section 313 Cr.P.C. by the accused as to how the human blood came to the clothes of the accused. Under these circumstances, reading cumulatively the evidence the appellant/accused was the author of the homicidal death of Jainbai was proved by the prosecution beyond reasonable doubt. 13. The submission of the appellant that Panchbai Yadav (PW-2) was the interested witness and relative, therefore, this witness should have been discarded, we are not in agreement with the same. There is a difference between “related witness” and “interested witness.” Interested witness is a witness who is vitally interested in conviction of a person due to previous enmity. 13. The submission of the appellant that Panchbai Yadav (PW-2) was the interested witness and relative, therefore, this witness should have been discarded, we are not in agreement with the same. There is a difference between “related witness” and “interested witness.” Interested witness is a witness who is vitally interested in conviction of a person due to previous enmity. The “interested witness” has been defined by the Supreme Court in Mohd. Rojali Ali vs. State of Assam, (2019) 19 SCC 567 . Therefore, merely the eyewitness is a relative, in absence of any incriminating adverse facts have come to fore, the said statement cannot be sidelined. 14. Further the submission of the appellant that as per the law laid down in the case of Gurmukh Singh (supra) the nature of incident how it happened would lead to convert the conviction from 302 IPC to 304-II IPC in order to appreciate we went through the law laid down by the Supreme Court in Gurmukh Singh (supra) wherein the Supreme Court has stated that there are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive which are reproduced herein-below: (a) Motive or previous enmity. (b) Whether the incident had taken place on the spur of the moment. (c) The intention/knowledge of the accused while inflicting the blow or injury. (d) Whether the death ensued instantaneously or the victim died after several days. (e) The gravity, dimension and nature of injury. (f) The age and general health condition of the accused. (g) Whether the injury was caused without premeditation in a sudden fight. (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted. (i) The criminal background and adverse history of the accused. (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock. (k) Number of other criminal cases pending against the accused. (l) Incident occurred within the family members or close relations. (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? 15. (k) Number of other criminal cases pending against the accused. (l) Incident occurred within the family members or close relations. (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? 15. The Supreme Court has laid down certain parameters in case of Arjun and Another vs. State of Chhattisgarh, (2017) 3 SCC 247 to evaluate whether the case would fall under the exception 4 to section 300 IPC. Paras 20, 21, 22 and 23 are relevant and quoted herein-below: “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. UT, Chandigarh, (1989) 2 SCC 217 , it has been explained as under: (SCC p. 220, Para 7) “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation orstarted the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam vs. State, (2008) 15 SCC 590 , in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, Para 9) “9.............“18. Further in Arumugam vs. State, (2008) 15 SCC 590 , in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, Para 9) “9.............“18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage.” 22. The accused, as per the version of PW 6 and eyewitness account of other witnesses, had weapon in their hands, but the sequences of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken ‘undue advantage” or acted in a cruel manner. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 Exception 4 IPC. Injuries as reflected in the post-mortem report also suggest that appellants have not taken ‘undue advantage” or acted in a cruel manner. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 Exception 4 IPC. 23.When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e., right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellant under section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 02.03.2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed for the modified conviction under Section 304 Part IPC, the sentence is modified to that the period already undergone.” 16. In the case in hand perusal of the evidence would show that initially the accused was hurling abuses on the road to the husband of the deceased. As a natural human behaviour the deceased Jainbai along with her daughter-in-law Panchbai Yadav (PW-2) went out of the house to advise the accused not to do so. Having seen them, the appellant rushed back to his house and came armed with a spade and gave a fatal blow to the deceased Jainbai, therefore, the nature of evidence would show that the assault was made with no premeditated mind and at the spur of moment it happened when he was insisted not to hurl abuses, therefore, it can be inferred that he has intent and knowledge that it would cause bodily injury. However, the said act was without any premeditation and in heat of passion the crime was committed for the reason that the deceased insisted the appellant not to abuse her husband. However, the said act was without any premeditation and in heat of passion the crime was committed for the reason that the deceased insisted the appellant not to abuse her husband. Therefore, in the facts situation, the case would fall under Section 304 Part I of the IPC. 17. Accordingly, the appeal is allowed in part. Conviction and sentence imposed upon the appellant vide impugned judgment dated 27.02.2021 passed by the concerned 1st Additional Sessions Judge, Kanker, District North Bastar, Kanker under Section 302 of IPC is modified as conviction under Section 304 Part-I of IPC and he is sentenced to undergo RI for 10 years. Accordingly, his sentence is modified to that extent.